The World Philosophy Made

by Scott Soames

  A THEORY OF CONSTITUTIONAL INTERPRETATION

  The American Constitution and Bill of Rights were fully ratified by 1791. A compromise between two groups of states with different social institutions and economic systems, already deeply divided over slavery, it was also a philosophical document, drawing on Locke, Hume, and others. Presented as a contract between “we the people” and those we select as our agents, the Constitution is the law that binds the national government.

  It begins with this preamble:

  We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

  The Constitution then specifies the structure of government, the governmental offices, terms of office, methods of appointment or election, the legal responsibilities of the different branches and of those filling offices, as well as the scope and limits of government power. No institution or group of officeholders is identified as the sovereign or supreme ruler. Still, if you ask Who is sovereign?, there is an answer. We, the citizens, are sovereign. Originally the citizens of the thirteen ratifying states were; today, the citizens of 50 states are. We, collectively, choose the leaders and provide the government with its legitimacy by taking fidelity to the Constitution to be our supreme Hartian rule of recognition.

  The trope—We the people of the United States … do ordain and establish—in which the Constitution fictionally presents itself as if it were written by all the people, is, in fact, a contract between its author-sovereigns and the government officials who are authorized to act on their behalf. Writing in this way to a broad and indeterminate population which they hoped would endorse their product, the real authors of the document—Gouverneur Morris, the drafting committee at the Philadelphia Convention, James Madison (who wrote the original amendments), and others—were inviting their audience to buy into their vision, thereby turning it into a reality. Because the issues were hotly contested, it was not obvious that they would. But once the Constitution was ratified, the factions largely disappeared as winners and losers of different constitutional arguments came together to support the fledgling republic. A fascinating case of a fiction struggling to become a reality, and succeeding, the Constitution is authoritative because we, its putative authors, take it to be.

  Important amendments subsequent to the Bill of Rights have changed the Constitution over the years. Although the Constitution itself changes in no other ways, constitutional law does. One source of change, implicit in the Constitution, involves changes wrought by Supreme Court decisions in which the Court applies constitutional text to facts brought before it. The Court’s first interpretive task is to derive the originally asserted or stipulated content of the constitutional provision. When applying this content to the facts of the case logically determines a unique result, it is the duty of the Court to return that verdict.

  Sometimes, however, it is indeterminate whether unanticipated facts of a new case, do, or don’t, fall under the original content of a constitutional text. The Court must then resolve the indeterminacy by making the minimum modification of the originally asserted constitutional content that maximizes fulfillment of the original intended constitutional purpose. Since this involves an imprecise balancing of two values, the result may be a restricted range of outcomes any of which would be legally justified. When judges select an outcome and that decision becomes an established precedent, they modify the constitutional law that existed prior to their construction—whether or not the selected outcome falls within the objectively authorized range. But the Constitution doesn’t change. Its original contents and purposes continue as touchstones against which new, judge-made constructions can be tested, sometimes leading to their revision or invalidation, if a later Court shows them to be inferior to constructions more in harmony with original constitutional contents and purposes.

  Constitutional law also changes when constitutional provisions are quietly ignored and replaced by extra-constitutional practices that go unchallenged. For example, Article I, Section 8 of the Constitution gives Congress alone the power to declare war. Nevertheless, that power was compromised by the Korean War, the Vietnam War, and the First and Second Gulf Wars. Congress never declared war in Korea, though the Korean War left 36,000 American soldiers dead. Although the other wars were sanctioned by congressional resolutions, they weren’t declarations of war, and in Vietnam the resolution followed military involvement rather than initiating it. This result has, arguably, shifted American constitutional law.

  Barack Obama’s “Iran deal” is another example. Although it was clearly a treaty with a foreign nation, the president didn’t submit it to the Senate, the approval of which by a two-thirds majority was constitutionally required. As with limited wars, a congressional fig leaf was offered instead. As I write, Obama’s deal has now been repudiated by a new president, Donald Trump. But if Obama’s practice is repeated with impunity, the clause concerning foreign treaties might also become a dead letter.

  This new factor—de facto constitutional change—plus the power of the Supreme Court to change constitutional law while still being responsible to the original Constitution, requires small, but significant, additions to the theory of judicial interpretation, which I sketched in the previous section. The theory, which I call “deferentialism,” is my own version of a broad family of related theories known as “originalism.”15

  CONSTITUTIONAL DEFERENTIALISM

  C1.  The original content of a constitutional provision is what was asserted or stipulated by lawmakers and/or ratifiers in approving it. This, along with the originally intended purpose of that assertion, is that to which the Court must be faithful.

  C2.  When dealing with cases in which the original content of a constitutional provision CP has been ignored and replaced by an extralegal practice, the Court must first articulate the content of the practice, incorporating past precedents (if any), and then either replace it with the original asserted content and intended purpose of CP or revise it by bringing it as close as possible to that content and purpose, without undermining important and well-founded expectations created by the practice (and precedents) on which those subject to the law have invested valuable resources that are not easily recovered.

  C3.  In applying existing constitutional law—whether original content of a constitutional clause or a modification of it resulting from an earlier precedent—to the facts of a case, the legal duty of the Court is to reach the verdict determined by that content, unless (a) it is vague and so doesn’t, when combined with the facts of the case, determine a definite verdict, or (b) it plus other constitutional provisions and facts of the case determine inconsistent verdicts, or (c) the content plus new facts that could not have reasonably been anticipated at the time the constitutional provision was adopted are patently and importantly inconsistent with the intended purpose of the provision, or (d) the earlier precedent is found to be insufficiently faithful to original constitutional content and purpose.

  C4.  In cases of type (C3a–c), the Court is authorized to make new constitutional law by articulating a minimum change in existing law that maximizes the fulfillment of its intended purpose. In cases of type (C3d), the Court is authorized either to replace it with the original asserted content and intended purpose of a constitutional provision, or to revise it by bringing it as close as possible to that content and purpose, without undermining important and legitimate expectations that have grown up on which relevant agents are relying.

  This theory updates the theory of judicial interpretation outlined earlier, accommodating the facts—(i) that the Constitution contains sweeping principles, the contents of which encompass both a clearly determinate core and an indeterminate periphery, (ii) that applying that content to new circumstances requires periodic adjustments, (iii) that makin
g the adjustments is primarily the job of the Supreme Court, and (iv) that because the Court does not have the authority to act as an independent political body, its authorized adjustments must preserve core contents of constitutional provisions to the maximum extent possible, while making only those changes that further the fulfillment of their original intended purposes.16

  This theory is descriptive in the sense that H.L.A. Hart’s account of legal systems is descriptive. It is a fact about the American system that the interpretation of legal texts by judges is governed by rules that determine their judicial responsibilities. Although these rules have normative consequences, the claim that a given set of norms is taken by citizens to be authoritative is descriptive. Deferentialism purports to articulate the content of those norms. Whether or not it does is a controversial matter.

  It does conform to what Supreme Court justices standardly say in justifying their decisions—always purporting to find reasons for them in constitutional texts or authoritative precedents.17 Still, a substantial number of their decisions over the last century do seem to have violated the tenets of deferentialism. Although this raises questions about whether deferentialism enjoys sufficient support among prominent members of the legal profession, it doesn’t by itself show that American law isn’t deferentialist. After all, deferentialism doesn’t espouse Supreme Court infallibility. Rather, it stipulates that the originally asserted contents of laws passed by institutions set up by, and operating in accord with, the original content of the Constitution remain legally valid, unless they have been overturned by constitutional processes. It further recognizes the Supreme Court as the highest authority in these matters. Thus, Americans’ acceptance of its decisions as genuine law, whether or not they have believed the cases to have been rightly decided, is consistent with deferentialism.

  Still, deferentialism is controversial. One leading argument against it goes like this: (i) The country has often been faced with serious problems the elected branches of government were unable to solve. (ii) Since deferentialism, and originalism more generally, would not have allowed the needed results, the Court had to solve the problems in another way. (iii) Thus deferentialism (and originalism) can’t give a correct account of the legal responsibility of justices in interpreting the Constitution.

  There are two problems with this argument. First, as I argue elsewhere, (ii) is false, since deferentialism can reach results validating the positive aspects of important cases like Brown v. Board of Education, while avoiding damaging missteps in the reasoning found in those decisions.18 Second, even if (i) and (ii) were true, it wouldn’t falsify the deferentialist description of what the Court is legally authorized to do. After all, every official position, short of that of an absolute ruler, carries limitations on one’s authority. Hence, no matter what one imagines the limits of the legal authority of judges to be, it will always be possible for circumstances to arise in which the morally best policy outcome in a given case can’t be judicially achieved without exceeding that authority.

  So, is the deferentialist account of the legitimate limits of judicial authority correct or not? On the plus side, deferentialism is a version of a broad category of easily understood, increasingly well-worked-out theories, known as originalist, which reflect Americans’ continuing reverence for the Constitution, their respect for its separation of powers, and their awareness of its delegation of legislative authority to Congress alone. Although it is widely recognized that justices sometimes must adjust constitutional content to new circumstances, they are widely expected to be maximally deferential to the Constitution when doing so. On the minus side, large numbers of politicians, law professors, and members of the legal profession reject originalism. This might be decisive, if they were united behind a well-articulated and widely accepted positive alternative to it, but they are not.

  These considerations raise a normative question: Whatever the current social norms determining the scope and limits of legitimate judicial authority in the United States currently are, what should they be? In fact, a version of this question is already implicit in deferentialism itself. In acknowledging that judges are sometimes authorized to make the minimum change in existing legal content that maximizes fulfillment of the law’s original intended purpose, deferentialism directs them to perform a task that can often be done more or less equally well in several ways. What should guide judges in choosing among them? There is no current consensus on this matter.

  At this point, the question is straightforwardly normative. Would we do better authorizing judges

    (i)  to exercise their own moral judgment in selecting the best of the remaining deferentially acceptable policy alternatives,

   (ii)  to decide the individual case at hand, while refusing to provide a general rationale favoring any of the remaining, equally deferential, alternatives, thus eschewing the precedential status of the decision and leaving the policy choice to the democratic branches, to voters, or, in constitutional cases, to the amendment process, or

  (iii)  to exercise their own discretion, treating it as precedential, when the issues raised by the alternatives are minor, while leaving broadly consequential policy issues to the people or the democratic branches?

  The question is ripe for debate.

  An interesting argument for (ii) or (iii) is given by John McGinnis and Michael Rappaport in Originalism and the Good Constitution.19 Their guiding premise is that the form of democratic government that produces the best consequences for its citizens—securing liberty, stability, consensus, and well-being—is one that relies on supermajoritarian rules and processes (as exemplified in the United States by the ratification of the original Constitution, the amendment process, and the supermajoritarian features of federalism, the separation of powers, and a bicameral legislature). Nothing could be further from this ideal than the ability of a bare majority of nine unelected judges with lifetime tenure to remove important constitutional matters from the normal give-and-take of democratic politics.

  One of their most interesting points concerns the process of amending the Constitution, which, on the face of it, would seem to be the best way of updating a governing document that is more than 200 years old. Today that process is often regarded too difficult. But is it? The Constitution has been amended 17 times since the ratification of the Bill of Rights in 1791, including twelve amendments in the twentieth century (all but one before 1972). Why the current dearth of amendments? McGinnis and Rappaport argue that the rampant judicial activism starting in the mid-1930s has been an important, but unfortunate, cause. Although the vast changes in the economy in the twentieth century may well have justified greater governmental oversight than had previously existed, they argue that this would have been better achieved by hammering out informed and efficient constitutional amendments. After all, the hegemony of New Deal Democrats then was very likely sufficient to allow them to play the leading role in drafting and ratifying amendments that were arguably needed. Unfortunately, the path taken relied on piecemeal adjustments of an unrepresentative and economically unsophisticated Supreme Court, whose peremptory rulings preempted what might have been achieved by a more consensual process.20 Worse, once the tide of judicial activism gained momentum, it began to produce divisive, partisan results that undermined public faith that the Court could be trusted not to subvert constitutional content, old or new.21

  EXTRA-CONSTITUTIONAL CHANGE: THE ADMINISTRATIVE STATE

  In addressing our next constitutional issue, we continue to follow Hart in taking law to be a system of internalized social rules obeyed not only because they are backed by force, but also because they are perceived to advance individual and general welfare, protect liberty, punish vice, and distribute benefits and burdens in morally acceptable ways, while being reasonably responsive to the views of the governed. Legal rules regulating behavior are identified by rules of recognition that invest institutions with authority to make action-guiding rules. As noted, the key element determining the authority
of American law is fidelity to the U.S. Constitution.

  Two key features of the Constitution are its separation of powers between the legislative, executive, and judicial branches, and its explicit guarantees of individual rights, which historically have been protected by the Supreme Court. Both are now threatened by the rise of the administrative state, composed of executive departments plus regulatory agencies. The former include the departments of Health and Human Services, Housing and Urban Development, Agriculture, Commerce, Interior, Justice, Labor, Education, Energy, Treasury, Transportation, State, Defense, Homeland Security, and more. The latter—regulatory agencies—include the SEC (Securities and Exchange Commission), NLRB (National Labor Relations Board), EPA (Environmental Protection Agency), FCC (Federal Communications Commission), OSHA (Occupational Safety and Health Administration), FTC (Federal Trade Commission), FDA (Food and Drug Administration), ICC (Interstate Commerce Commission), and more.

  Professor Gary Lawson of Boston University Law School describes the characteristic feature of these agencies. As he puts it,

  [T]he destruction of the principle of separation of powers is perhaps the crowning jewel of the modern administrative revolution. Administrative agencies routinely combine all three governmental functions [executive, legislative, and judicial] in the same body.22